Children have become the unwilling emblems of armed conflict and extreme violence. Searing proofs of this claim surface almost daily in news stories, aid workers’ alerts and rights groups’ dispatches. Particularly unforgettable was the 2015 photograph of a war refugee whose 3-year-old body had washed up, face down, on a Turkish beachFootnote 1 – yet this example was by no means unique. The innumerable images that appeared in succeeding years included toddlers in trucks bound for camps, a 5-year-old pulled from Aleppo rubble, a small South Sudanese soldier wedged in line between much taller adult infantrymen, and a 7-seven-year old reduced to skin and bones on account of Yemen's conflict-fuelled famine.Footnote 2 Putting to one side the ethical concerns surrounding the publication of such images,Footnote 3 these depictions underscore the need to continue to press for strategies both to combat harms against children and to bring the persons responsible to justice.
Several ongoing initiatives merit particular attention. The United Nations (UN) Office of the Special Representative of the Secretary-General for Children and Armed Conflict monitors what are known as the Six Grave Violations. Derived from the Special Representative's analysis of UN Security Council resolutions as well as international humanitarian, human rights and criminal law, they are: recruitment and use of children; killing or maiming of children; sexual violence against children; attacks against schools or hospitals; abduction of children; and denial of humanitarian access.Footnote 4 UNICEF and many other UN entities complement the Special Representative's efforts. Meanwhile, groups forming the Global Coalition to Protect Education from Attack have secured 101 States’ endorsements of a Safe Schools Declaration.Footnote 5 Eighty-nine States have endorsed the Vancouver Principles on Peacekeeping and the Prevention of the Recruitment and Use of Child Soldiers.Footnote 6 These and other soft-law instruments amplify obligations that States assumed when they joined the 1989 Convention on the Rights of the Child (CRC) or a handful of child-related treaties compiled in the International Committee of the Red Cross (ICRC) database.Footnote 7
Taken together, such initiatives indicate normative support for child protection, but in practical terms, they lack teeth. Some depend largely on endorsers’ good faith, or on whatever deterrence may lie in the power to name and shame wrongdoers. Others simply hope that each State Party will incorporate articulated norms into its internal law enforcement system. The presence of an international jurisdiction that is able, and willing, to prosecute conflict-linked crimes against children is thus essential to the struggle against the commission of such crimes.
Tribunals that have served this role in recent decades include the Special Court for Sierra Leone (SCSL), which enunciated the customary international law status of the ban on child-soldiering and subsequently imprisoned a former head of State for violating that ban,Footnote 8 and the International Criminal Court (ICC), whose first case centred entirely on a militia commander's culpability for the war crimes of conscripting, enlisting and using in hostilities children under the age of 15.Footnote 9 Although they broke ground by calling leaders to account for child combatancy, these cases failed to identify, prosecute or punish the full range of international crimes that children endure amid armed conflict and similar situations of extreme violence.
Following her election as the ICC's second prosecutor, Fatou Bensouda announced plans for a broader approach in an important 2012 speech. “Our focus”, she said, “should shift from ‘children with arms’ to ‘children who are affected by the arms’ in the context of the crime of enlisting and conscripting child soldiers.”Footnote 10 To that end, Bensouda appointed the Prosecutor's first Special Adviser on Children in and Affected by Armed Conflict, consistent with a mandate in the ICC's Rome Statute;Footnote 11 listed, as one of her office's six strategic goals, “particular attention to … crimes against children”;Footnote 12 and initiated work on a policy paper on the subject. The result was the ICC Office of the Prosecutor's Policy on Children, published in 2016 in English, and in Arabic, French, Spanish and Swahili translations.Footnote 13
This article focuses on that Policy. It first lays out the Policy's contents, then discusses relevant ICC practice and related developments. The article concludes that although the Policy is an important component of ongoing efforts, much remains to be done to recognize, prevent and punish the spectrum of conflicted-related crimes against children.
The ICC Office of the Prosecutor's Policy on Children
The Policy on Children emerged out of research, drafting and editing undertaken by a working group composed of staff in various Office of the Prosecutor sub-units, along with the Special Adviser on Children in and Affected by Armed Conflict. Supplementing the working group's internal process were numerous external meetings: gatherings of academic experts and practitioners at Leiden Law School in the Netherlands and at the Dean Rusk International Law Center, University of Georgia School of Law, in the United States; a consultation at the ICC premises with a global array of representatives of civil society organizations; and dialogues, in Canada, Colombia, the Democratic Republic of the Congo, the Netherlands, Qatar, Sierra Leone and Somalia, with young people, many of whom had lived in conflict zones.Footnote 14 The Policy's public launch took place in November 2016, at an event in The Hague that featured speeches by Prosecutor Bensouda, Zeid Ra'ad Al Hussein, then the UN High Commissioner for Human Rights, and General Roméo Dallaire, founder of the Roméo Dallaire Child Soldiers Initiative.Footnote 15
Published in booklet form and spanning forty-four dense pages, the Policy on Children highlighted the concern for children that is apparent in the Rome Statute's preamble, enumeration of crimes and other provisions, and in instruments like the ICC Rules of Procedure and Evidence and Elements of Crimes.Footnote 16 Observing “that most crimes under the Statute affect children in various ways”, the Policy promised “particular attention” by the Office of the Prosecutor “both to the commission of crimes against or affecting children, and to its own interaction with children”.Footnote 17 Its elaboration of that promise adhered to the format that the Office had adopted in its Policy Paper on Sexual and Gender-Based Crimes, issued two years earlier.Footnote 18 An Executive Summary thus opened the Policy on Children, preceding chapters entitled “Introduction”, “General Policy” and “The Regulatory Framework”. Together, those three chapters synthesized legal instruments, doctrines and jurisprudence pertaining to harms that the Rome Statute authorizes the ICC to prosecute and punish – harms referred to throughout the Policy on Children as “crimes against or affecting children”. Then followed a final part of a more operational nature, composed of six chapters on “Preliminary Examinations”, “Investigations”, “Prosecutions”, “Cooperation and External Relations”, “Institutional Development” and “Implementation”. Each part will be discussed in turn.
Legal synthesis
Embedded in the Policy on Children is a synthesis of international and regional instruments, jurisprudence, advocacy reports and academic literature touching on children and armed conflict. These writings were relatively unconnected at the time that work on the Policy began. Broad-based treatment of the ICC and children appeared in commentaries issued soon after the 1998 adoption of the Rome Statute,Footnote 19 yet attention to the subject had narrowed somewhat over time. The phenomenon of child soldiering did garner extensive attention in international humanitarian, human rights and criminal law circles, but almost to the exclusion of the many other ways that armed conflict and extreme violence affect children. Sexual violence was also discussed, as was treatment of victims and witnesses; not infrequently, however, the needs of children merged into those of adults.Footnote 20 Child rights literature, meanwhile, tended to centre on compliance within national systems. Work on the Policy thus entailed, and helped to generate, new and comprehensive research.Footnote 21
As an initial matter, development of the Policy required determining the meaning of “child”. The Rome Statute does not define the word, and while it authorizes ICC jurisdiction only if a person was at least 18 at the time of the alleged crime, its child soldiering provisions apply only if the child recruited or used by an armed force is under 15. The Policy specified that “children” included “persons who have not yet attained the age of eighteen”; in so doing, it pointed not only to the Statute's prosecution threshold, but also to the understanding that, in the prohibition of forcible transfer as genocide, the term “children” connotes any person under the age of 18.Footnote 22 The Policy construed the recruitment-or-use age of under 15 not as a definition but rather as a statutory element that confers ICC jurisdiction over a specific war crime.Footnote 23
Having established what it means by “child”, the Policy embraced what it labelled “a child-sensitive approach”, to be applied in all the work of the Office of the Prosecutor, and grounded in the CRC:
This approach appreciates the child as an individual person and recognises that, in a given context, a child may be vulnerable, capable, or both. The child-sensitive approach requires staff to take into account these vulnerabilities and capabilities. This approach is based on respect for children's rights and is guided by the general principles of the 1989 Convention on the Rights of the Child: non-discrimination; the best interests of the child; the right to life, survival and development; and the right to express one's views and have them considered.Footnote 24
The use of “child-sensitive” rather than, say, “child-centred” reflected the balancing of children's and many others’ interests that is inherent in the work of a prosecutor's office; indeed, the term “child-sensitive” was derived from 2005 UN guidelines on treatment of children who appear as victims or witnesses within a legal system.Footnote 25
The Policy's explanation of the child-sensitive approach, moreover, effectively rejected a characterization often heard in discourses of international criminal law, international human rights law and international humanitarian law. To be specific, it moved away from what Professor Mark Drumbl has dubbed the notion of the child as “faultless passive victim”.Footnote 26 “Children may be victims”, the Policy observed, but it then added that “they may be involved in the commission of crimes; they may witness the commission of crimes against others, including members of their own families; or they may be unable to receive an education or medical care due to the destruction of schools or hospitals”.Footnote 27 Furthermore, “children may be impacted differently by crimes based on their sex, gender, or other status or identities”, the Policy said.Footnote 28 These observations signalled a recognition, common in contemporary international child law, that children, like all human beings, are rights-bearing, multifaceted individuals and at the same time members of multigenerational communities:
Children, by the very fact of their youth, are frequently more vulnerable than other persons; at certain ages and in certain circumstances, they are dependent on others. Notwithstanding any vulnerability and dependence, children possess and are continuously developing their own capacities – capacities to act, to choose and to participate in activities and decisions that affect them. The Office will remain mindful, in all aspects of its work, of the evolving capacities of the child.Footnote 29
The commitment to engage with children according to their capacities informed an integral component of the child-sensitive approach; to be specific, the two-step inquiry posited the following as a means to arrive at decisions in the best interests of the child:
• First, “assess the best interests of the child”, considering “the views of the child and of other relevant persons, and the child rights at issue” – plus “the child's specific situation”, which may include pertinent, and likely intersecting, factors, such as age and maturity, ability or disability, gender or sexuality, status in an underrepresented group, and living circumstances.Footnote 30
• Second, examine whether any other factors “require a balancing of various interests”; such factors may include “legal or operational issues”, as well as conflicts between the interests of the child and those of parents or other parties to the decision.Footnote 31
After setting out this synthetic framework for considering issues related to children, the Policy next identified crimes of special concern.
Enumeration of crimes against or affecting children
Almost all crimes within the ICC's jurisdiction affect children, the Policy on Children reiterated; focus was placed on crimes in the Rome Statute that expressly refer to children, and on several other “crimes directed specifically against children or those that disproportionately affect them”.Footnote 32 The Policy thus emphasized the following crimes against or affecting children:
• conscription, enlistment and use of children under the age of 15 years to participate actively in hostilities, as war crimes in violation of the Rome Statute, Articles 8(2)(b)(xxvi) and 8(2)(e)(vii);
• forcible transfer of children and prevention of birth, as acts of genocide in violation of the Rome Statute, Articles 6(d) and 6(e);
• trafficking of children as a form of enslavement constituting a crime against humanity in violation of Rome Statute, Articles 7(1)(c) and 7(2)(c);
• attacks on buildings dedicated to education and health care, as war crimes in violation of the Rome Statute, Articles 8(2)(b)(ix) and 8(2)(e)(iv);
• torture and related war crimes and crimes against humanity, in violation of the Rome Statute, Articles 7(1)(f), 7(1)(k), 8(2)(a)(ii), 8(2)(a)(iii) and 8(2)(c)(ii);
• persecution as a crime against humanity, in violation of the Rome Statute, Article 7(1)(h); and
• sexual and gender-based violence as war crimes and crimes against humanity, in violation of the Rome Statute, Articles 7(1)(g), 8(2)(b)(xxii) and 8(2)(e)(vi).Footnote 33
Overlaps between the Policy's Rome Statute listing and the UN's Six Grave Violations are evident. Both enumerations evince concern, for example, about child soldiers, attacks on schools or hospitals, and sexual violence. To be precise, the Policy speaks not of “sexual violence” but rather of “sexual and gender-based crimes”, a phrasing that pays heed to the fact that boys as well as girls may be victims of crimes “because of their sex and/or socially constructed gender roles”, and that such crimes “are not always manifested as a form of sexual violence”.Footnote 34 One notable addition in the Policy's listing of crimes against or affecting children is persecution; the Policy makes clear that “acts targeting children on the basis of age or birth may be charged as persecution on ‘other grounds’”, and that “children may also be persecuted on intersecting grounds, such as ethnicity, religion and gender”.Footnote 35 Another addition is torture, which is excluded from the UN list albeit sometimes cited by UN officials as an aspect of listed violations like sexual violence.Footnote 36 The Policy further adds child trafficking and forcible transfer of children, provided that those acts meet the requisite contextual elements of a crime against humanity or genocide. The inclusion of these two categories of international crimes underlines the Policy's wider scope. As a formal matter, the UN Special Representative's mandate is limited to armed conflict.Footnote 37 But the Rome Statute, upon which the Policy is founded, additionally confers jurisdiction over widespread or systematic attacks against civilian populations, in the case of crimes against humanity, and even over peacetime, in the case of genocide.Footnote 38
Operational aspects
The legal framework concerning crimes against or affecting children having been set out, the balance of the Policy considered operational aspects in all the activities of the Office of the Prosecutor. These included preliminary examination, investigation, charging and prosecutions, cooperation and external relations, institutional development and, finally, implementation. Envisaged regarding the latter aspects were more training, greater cooperation with partners and further dissemination of the Policy, “in a format that children can understand”.Footnote 39
Animating this part was the child-sensitive approach, amplified by the Office's commitment to “strive to ensure that its activities do no harm to the children with whom it interacts, particularly victims and witnesses”.Footnote 40 In fulfilment of earlier statements on children's capacities, the Policy stated that “children are capable of giving credible evidence”, and furthermore, that “the views of children and their parents or caregivers on matters affecting them” would be sought out and considered.Footnote 41 Detailed procedures, including video and audio recording, were specified for staff contacts with children.Footnote 42
Of particular note was the Policy's pledge to “make full use of the regulatory framework to address the various ways that children are affected by crimes within the jurisdiction of the Court”, with the aim of “strengthening the accountability for such crimes, thereby contributing to their prevention, and also to the development of jurisprudence”.Footnote 43 Naming again the Rome Statute crimes against or affecting children that it already had listed, the Policy stated: “In order to capture the totality of the violence perpetrated against children, and to highlight the unique experiences of children, the Office will consider appropriate charges wherever the evidence permits.”Footnote 44 This consideration was to extend to the end of trial; should the accused be convicted, “crimes against or affecting children should be seen as particularly grave for the purpose of sentencing … taking into account the immediate and long-term harms caused to children, their families and communities”.Footnote 45 In sum, the Policy's commitment to a full accounting for crimes against or affecting children echoed Prosecutor Bensouda's 2012 agenda-setting speech,Footnote 46 and furthermore established a framework for ICC practice.
ICC practice and related developments
The agenda of broadening the ICC's treatment of children's experiences beyond those related to recruitment or use in armed groups has surfaced not only in strategic documents like the Policy on Children, but also in ICC practice.
Following the surrender in 2013 of a long-time fugitive Congolese rebel leader, the ICC Office of the Prosecutor amended the original indictment to include war crimes charges that the accused was responsible not only for the recruitment and use of children, but also for acts of rape and sexual slavery, committed by subordinates in his militia against children under 15 in the same militia.Footnote 47 An interlocutory judgment by the ICC Appeals Chamber sustained the new charges, setting a precedent that promises to expand the scope of protection against sexual and gender-based crimes not only for underaged children but also for youths and adults victimized by or within armed groups with which they have become associated.Footnote 48 A Trial Chamber convicted the accused of those and other charges in July 2019, and subsequently sentenced him to thirty years’ imprisonment.Footnote 49 That same month, an Appeals Chamber confirmed a $10 million reparations award against another Congolese militia leader, the defendant in the ICC's first case, for hundreds of victims, identified as “children under the age of fifteen years who were conscripted or enlisted into the FPLC, or used to participate actively in hostilities, as well as to indirect victims – including family members of those children”.Footnote 50 Meanwhile, the victimization in Myanmar of Rohingya children and their families formed the core of a new ICC investigation, authorized in November 2019 following a request by the prosecutor. Recounting the allegations on which it had based its authorization decision, the Pre-Trial Chamber wrote with respect to Myanmar: “Victims’ representations also mention that children were often targeted and killed, including small children who were thrown into water or fire to die.”Footnote 51
Another aspect of the 2016 Policy on Children – the fact that amid armed conflict, children “may be involved in the commission of crimes” – played out in the three-year trial on multiple charges, including several crimes against or affecting children, of a Ugandan commander who said he had been abducted into an armed group at age 14.Footnote 52 In her opening statement, Prosecutor Bensouda maintained that presumed status as a “perpetrator-victim” did not bar prosecution of the accused: “[H]aving suffered victimization in the past is not a justification, nor an excuse to victimise others”, she said, adding that her office aimed to “prove what he did, what he said, and the impact of those deeds on his many victims”.Footnote 53 The evidentiary phase concluded in December 2019, and the case now awaits a verdict.
A persistent obstacle to securing accountability for crimes against and affecting children is related to the tendency to focus prosecutions on high-ranking officials. Several cases before the ICC have turned on whether judges concluded that the accused himself bore responsibility pursuant to one of the modes of individual criminal liability set out in the Rome Statute. A number of such prosecutions resulted in acquittal, at either the appellate or trial level. In one case, judges deemed the presence of armed and underaged child combatants to have been widespread, yet entered judgments of acquittal on the grounds that there was insufficient proof of a link between their presence and the culpability of the accused.Footnote 54 In another, a military commander was acquitted in an appellate judgment that rejected a Trial Chamber's conviction based on the doctrine of command responsibility.Footnote 55 At times too, failures of proof have been attributed to concerns regarding reliability of evidence, particularly regarding younger witnesses; that fact presents a particular challenge for the implementation of a more comprehensive approach to prosecution of crimes against or affecting children.
Especially challenging, it must be said, is a change in geopolitical appetite for international criminal accountability. An example may be found in the narrative of the prosecutor's 2017 request to open an investigation into conduct in Afghanistan, an ICC State Party, by members of armed groups like the Taliban and of the armed forces of Afghanistan and the United States.Footnote 56 Among the actions alleged, in addition to the criminal recruitment of children, were attacks on schools and hospitals, gendered violence against girls and crimes against child detainees.Footnote 57 While the request was pending, in April 2019, the United States retaliated against the inquiry by revoking the prosecutor's US visa; within weeks, a Pre-Trial Chamber rejected the request based on a novel application of the Rome Statute's interests-of-justice provision.Footnote 58 Pending at the time of this writing is an appellate review of that rejection – which, if sustained, would have the effect of precluding an ICC prosecution for harms that children have suffered during the protracted conflict in Afghanistan.
Such reverses underscore that international criminal justice alone cannot secure accountability for crimes against or affecting children, let alone fully prevent those crimes. The success of international criminal justice depends on support from States, other international organizations and civil society. The Policy on Children has a role to play among these entities; as Bensouda put it in 2016: “I hope that this Policy will also serve as a useful reference for national authorities, civil society and other actors in their endeavours to address crimes against and affecting children, and to improve the experience of children in judicial processes.”Footnote 59
States, international organizations and civil society must also work for prevention in spheres other than the ICC, and by means other than criminal prosecution. Salutary recent events in this respect include the 2019 filing by Gambia of an International Court of Justice case alleging Myanmar's State responsibility for genocidal acts against Rohingya children and adults;Footnote 60 the 2017 Inquiry into Protecting Children in Armed Conflict, chaired by UN Envoy Gordon Brown, which produced a 500-page exposition of pertinent legal instruments and jurisprudence and norms of international humanitarian law, human rights law, international criminal law, and customary international law;Footnote 61 and a number of UN initiatives to combat the conflict-related detention of children.Footnote 62 Commentators have a role to play; by way of example, it is unfortunate that, in its current form, a proposed treaty on crimes against humanity retains the 1998 Rome Statute definition of the crimes, and thus does not reflect newer understandings regarding children.Footnote 63 The UN processes based on the Six Grave Violations, moreover, must continue to be strengthened. Civil society campaigns respecting attacks on education and child combatants, as well as recent attention to the effects on children of blast injuries,Footnote 64 likewise merit continued endeavour. Through such interrelated initiatives, a path may be found to the prevention and punishment of the full array of wartime harms to children.
